McCracken v. McCrary, 50 N.C. 399, 5 Jones 399 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 399, 5 Jones 399

THOMAS McCRACKEN v. GEORGE McCRARY et al.

Where a written instrument went into the hands of a person who left the State, and there was no evidence that it had been lost or destroyed, it was Held that giving notice to the opposite party to produce it on the trial, would not make it competent to introduce secondary evidence of its contents.

This was an action of COVENANT, tried before Saundebs, J., at the last Spring Term of Alamance Superior Court.

The action was brought on the following instrument:

“ Thomas McCracken:

“ You will please to let the bearer, Mr. Thomas G. Brown, have the note made by him, and General Joseph S. Ilolt, security, and we, the undersigned, will be responsible to you for the same on this order.

Signed, Geobge McCbaby, (seal)

H. C. Tbolingee, (seal.)”

A witness for the plaintiff, proved that he (plaintiff) held a note on Thomas G. Brown, with Joseph S. Holt as surety, which he gave up to the said Brown, upon his producing to him the above instrument. The plaintiff’s counsel proposed to ask the witness as to the amount and date of the note given up to Brown, but defendants’ counsel objected, upon the ground, that the note itself was the best evidence of its contents. The plaintiff then showed a notice to the defendant to produce the instrument in question. It was still objected, on behalf of the defendant, that the note was delivered to Brown, and there was no evidence that it was ever in the possession of the defendants.

The plaintiff then showed that Brown had left the State of North Carolina, and lived in a distant State.

The Court thereupon admitted the evidence, and the witness went on to state thatlie hadno precise remembranceof the note ip question, but that he made a calculation of the amount when it was surrendered to the obligees, and after deducting several endorsed credits, the remainder due on the paper was $149 and some cents; but he could not say precisely as to the fractions. The defendants excepted.

Verdict and judgment for plaintiff. Appeal by the defendants.

No council appeared for the plaintiff in this Court.

Sill and MoLecm, for the defendants.

Pearson, J.

There being no evidence that the bond was in the possession, or within the control of the defendants, the notice to produce it amounted to nothing. The fact, that the bond was delivered to Brown, and that he had left the State, tended to show that he had it in his possession ; if so, the fact of its being out of the State, did not make parol evidence of its contents admissible; Threadgill v. White, 11 Ire. Rep. 591; Davidson v. Norment, 5 Ire. Rep. 555 ; 1 Greenleaf, 113. The calculation made by the witness, was based on the contents of the bond and the endorsed credits, consequently, it was secondary evidence, and was inadmissible, in the absence of proof that the bond was lost or destroyed.

There is error, venire de novo.

Pee Cueiah, Judgment reversed.